Summary: Mr X complained the Council refused to carry out work on the footway which runs past the entrance to his property. Mr X said resurfacing work on the footway caused surface water to pond on his pathway resulting in a nuisance and a hazard. The Council was not at fault. The surface water on Mr X’s property is the principal reason for the ponding. To reinstate the footway as it was previously would cause the water to drain away across the footway which is an offence under the Highways Act.

The complaint

1. Mr X complained the Council failed to carry out work on the footway which runs past the entrance to his property. Mr X said the Council approved work on the footway which resulted in surface water running off it, and pooling on his path. Mr X said it has caused him a nuisance and a hazard.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered the information Mr X provided in his complaint correspondence to the Ombudsman.
6. I considered the Council’s response to my enquiries.
7. I considered the Highways Act 1980.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

9. The Council, as the Highway Authority is responsible for all roads and public rights of way other than trunk roads. The duties of the Highway Authority include:
• Maintaining all highways classed as being maintainable at public expense that fall within its area of control
• Regulating the activities of developers in relation to their highways

The Highways Act 1980

10. The Highways Act 1980 is legislation which deals with the management and operation of the road network in England and Wales.
11. Section 278 of the Act allows a developer to carry out works to the public highway with agreement from the Highway Authority. The agreement is called a Section 278 agreement and may allow for items such as:
• Junctions
• Roundabouts
• Right turn lanes
• Improvements to existing junctions
12. Under the agreement the developer may be responsible for designing, carrying out and paying for the works to the satisfaction of the Highway Authority.
13. Section 163 of the Act places an obligation on the Highway Authority to prevent water falling on or flowing on to the highway. Under the Act the Highway Authority can request the occupier of a premises construct or erect channels, gutters or downpipes to prevent as far as is reasonable, surface water flowing onto or over the footway or the highway.

What happened

14. Mr X lives in a property on road A and has a front garden path which leads from his front door to the footway of road A. In 2014 the Council granted planning permission for a developer to build a new housing estate on land behind Mr X’s property. The development included a new junction and access point to the new estate off Road A, a few metres up from Mr X’s property.
15. Mr X raised concerns with the Council in 2015 about the access point and drainage from the new estate. The Council wrote to Mr X and said the development included a kerb realignment and a new gulley to take water from the existing highway and run-off from the new junction. The Council said the new estate would have a full drainage system to dispose of surface water.
16. In 2016, the developer constructed the new junction and access point to the new estate. The work included the kerb realignment and the resurfacing of the footway which runs past Mr X’s entrance up to the new access point.
17. Mr X wrote to the Council following the completion of the works on the footway. He said since the resurfacing of the footway, water was pooling on his garden path. He said the developer resurfaced the footpath on top of the existing surface and rolled the surface down to meet the level of his garden path. He said surface water was rolling down the surface into his path which caused the pooling. Mr X said he did not have that problem before the works were carried out.
18. The Council wrote back to Mr X and acknowledged his concerns. The Council however said the issue was water not draining away from Mr X’s property rather than water discharging from the highway onto it. The Council said the ground level indicated Mr X’s path fell towards the highway and the resurfaced footway was preventing the water from escaping.
19. Mr X continued to write to the Council about the issue of water pooling on his path. The Council wrote to Mr X in October and December 2017. The Council said it had highlighted the issue to the developer and asked them to raise the section of footway in front of Mr X’s path to prevent water standing.
20. Mr X wrote to the Council again in March 2018 as the matter was still ongoing. The Council wrote back to Mr X in April 2018. It said it had highlighted the issue to the developer who agreed to carry out the work on the footway. However, the Council said Mr X had removed some concrete edging on his footpath. The Council said the developer was unable to carry out the work until Mr X raised the threshold level at the end of his path.
21. Mr X was unhappy with the response. He said the edging was a temporary measure at his own expense until such time the developer carried out the remedial work. The Council wrote to Mr X in August and September 2018 and said its position was clear. It said while previously there was no edging across Mr X’s path, surface water was discharging from his property across the footway. The Council said it cannot lower the path because surface water should not discharge onto a public highway. Therefore, it would take no further action until Mr X reinstalled the edging and raised the threshold of his path.
22. Mr X formally complained about the matter to the Council in October 2018. The Council reiterated its previous correspondence. It said the kerb height complied with standard specification as did the surface of the footway with the exception of adjustments made to meet the threshold of Mr X’s property. It said again it could overcome that issue if Mr X raised the level of his footpath.
23. Mr X escalated his complaint to stage 2. The Council responded in January 2019 but just reiterated its previous response.
24. Mr X remained unhappy and complained to the Ombudsman.

My findings

25. Mr X’s complaint is that prior to the new development and the works carried out on the highway, water did not pond in his pathway as it does now. I cannot know exactly how much surface water discharged from the footway outside Mr X’s house before the new development. However, the evidence shows the resurfacing of the footway slopes downwards to meet Mr X’s path. That prevents any water from Mr X’s pathway from draining away. Despite the raising of the pavement causing some water to pool on Mr X’s path, the Ombudsman does not find fault with the Council because:
• The law says there is no right to discharge water from private land to the highway. The Council can request property owners to construct as necessary measures to prevent surface water flowing onto the highway.
• On balance, it is not drainage from the new estate that has caused the water to pool, but the fact the surface water on Mr X’s property previously drained away across the footway onto the highway. That is an offence under the Highway Act. The raised footpath prevents this from happening.
26. To reinstate the footway as Mr X requested would cause surface water from his property to discharge onto the highway which is an offence. Therefore, I cannot find the Council at fault for failing to do so.
27. The Council was still willing to work with Mr X to prevent additional water flowing from the footway onto Mr X’s path. The Council cannot carry out that work unless Mr X raises the threshold of his path. Mr X previously installed edging to allow that work to take place but removed it before it could be completed. That was a matter for Mr X to further consider. The Council however was not at fault.

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Final decision

28. I have completed my investigation. The Council was not at fault for the water ponding on Mr X’s pathway.

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Investigator's decision on behalf of the Ombudsman